Copyright: Its History and Its LawBowker, R. R. (Richard Rogers)
History
Copyright: Its History and Its Law
Bowker, R. R. (Richard Rogers)
Copyright -- History; Copyright -- United States -- History
There can be no such thing as a copyright for a special purpose or for a
special locality, or under other special conditions, for there can be
only one copyright, and that a general copyright, in any one work. But
specific contracts can be made, enforceable under the law of contracts,
as for the sale of a copyrighted book within a certain territory,
provided such contracts or limitations are not contrary to other laws.
Although record of assignment in the Copyright Office is provided for by
the law only for the copyright in general, the separate estates as a
right to publish in a periodical and the right to publish as a book may
be sold and assigned separately, and the special assignment recorded in
the Copyright Office, though this does not convey a right to substitute
in the copyright notice a name other than that of the recorded
proprietor of the general copyright, which can only be changed as
specifically provided in the law under recorded assignment of the entire
copyright.
{Sidenote: Copyright as monopoly}
Copyright is a monopoly to which the government assures protection in
granting the copyright. It is a monopoly not in the offensive sense, but
in the sense of private and personal ownership; the public is not the
loser but is the gainer by the protection and encouragement given to the
author. The whole aim of copyright protection is to permit the author to
sell as he pleases and to transfer his rights collectively or severally
to such assigns as he may choose. Copyright is a monopoly only in the
sense that any ownership is a monopoly. Says Herbert Spencer: "If I am a
monopolist, so also are you; so also is every man. If I have no right to
those products of my brain, neither have you to those of your hands. No
one can become the sole owner of any article whatever; and all property
is 'robbery.'" In the copyright debates of 1891, Senator O. H. Platt
rightly said: "The very essence of copyright is the privilege of
controlling the market. That is the only way in which a man's property
in the work of his brain can be assured." And as Senator Evarts pointed
out in the same debate: "The sole question is what we shall do
concerning something which is the essential nature of copyright and
patent protection, namely, monopoly." In discussing patent monopoly and
the law of contracts in Victor Talking Machine Co. _v._ The Fair, the U.
S. Circuit Court of Appeals, through Judge Baker, said, in 1903, that
"within his domain the patentee is czar. The people must take the
invention on the terms he dictates or let it alone for seventeen years."
Thus as the government grants and guarantees the monopoly, it is not to
be taken as in restraint of trade or otherwise contrary to law. Said
Judge Cullen in the case of Murphy _v._ Christian Press Association, in
the Appellate Division of the N. Y. Supreme Court, in 1899, decisions as
to agreements in restraint of trade "have no application to agreements
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